BLAW10001 Lecture Notes - Lecture 3: Judiciary Of Australia, Law Report, Law Reports
19 Mar 2019
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Week 3 Lecture 3
Basic Procedure in a Civil Case
• Civil litigation begins with an exchange of written documents (‘pleadings’) in order to define
the nature and extent of the dispute.
• When the case comes to trial in court, evidence is led from witnesses, or by producing
documents, to establish the facts relied on by plaintiff and defendant.
• Each side then presents an argument as to what the relevant law is and how it should be
applied.
• The court decides what facts are proved, and what the law is. The case is decided according
to the law and an appropriate order is made.
A Judge’s Power to Make Law
• The normal expectation is that judges apply the existing law to cases. Judges have no direct
authority (for instance, from a constitution) to ‘make’ law. Nevertheless reference is
commonly made to ‘judge-made’ law and the reports of decided cases are routinely cited as
a source of law.
• We find that judges make law indirectly when they decide cases.
Opportunities to Make Law When Deciding Cases
• In most cases, when deciding cases, judges simply find an established rule of law and apply
it. But sometimes, the judge may not be able to find an established rule of law to apply. In
such cases, judges have various alternatives. They may:
o Declare a rule as a rule of Australian law the first time, eg, a previously unwritten
rule of law, or one deriving from natural law or custom.
o Interpret an existing rule of law, to establish its meaning
o Extend an established rule of law to a new situation.
How English judges Develop the “Common Law”
• Before the 14th century, local laws and customs applied in different parts of England.
• After the 14th century, a uniform (common) body of law came to be applied by the King’s
courts throughout England, replacing local laws. This body of case-law is known as the
‘common law’.
• Characteristically, the common law is applied in a strict, legalistic way.
• Appeals from common law courts were originally made to the King’s Chancellor. Later,
appeals were heard by the Court of Chancery.
The Development of “Equity”
• The decisions of the Court of Chancery developed into a body of rules referred to as ‘equity’.
As the name implies, these rules are based on notions of justice and fairness.
• The separate common law courts and courts of equity have now been replaced by a single
system of courts and all courts draw on both common law and equity to resolve new cases.
• Common law and equity can be referred to jointly as ‘case-law’ or ‘the general law’, as
distinct from legislation.
The Principle of “Stare Decisis”
• If a court has decided a case and a similar case arises again at a later date, would the new
case be decided the same way as the earlier one? Yes, because of the doctrine of
precedent. ‘Stare decisis’ means ‘let the decision stand’ i.e. let it be seen as laying down the
rule by which later such cases will also be decided.
• In particular, the doctrine of precedent states that:
o previous decisions of superior courts must be followed, unless the cases can be
distinguished on their material facts and therefore treated as sufficiently different
to justify applying different rules.
The “Ratio Decidendi” of a Case
• The ratio decidendi of a case consists of the legal principle, rule or reason which the court
has applied to the materials facts of the case to arrive at its decision.
• A ratio decidendi is a flexible and sometimes difficult thing to ascertain with absolute
precision.
• The ratio decidendi is the essential part of the precedent.
An Example of Case Law
Taylor v Johnson (1983) 151 CLR 422
(there is also a summary of this case in the textbook)
• Johnson sent a written contract to Taylor, offering to sell 10 acres of land to Taylor. She
thought she was offering to sell at a price of $15,000 per acre. But the contract clearly
stated the price as $15,000 for the ten acres. Taylor quickly accepted the written offer,
agreeing to buy the ten acres for $15,000.
• The court that first heard the case applied two established common law rules:
o A contract will be enforced according to its agreed terms.
o What has been agreed is judged objectively.
• In Taylor’s case, it appeared (objectively) that the parties had agreed to sell the ten acres for
$15,000. A mistake by one party as to the agreed terms of a contract does not affect
objective agreement.
• The court decided to enforce the contract on its stated terms, despite Johnson’s mistake.
Johnson appealed against this decision to the New South Wales Court of Appeal and was
successful. Taylor then appealed to the High Court.
• On appeal, the High Court took note of additional facts. The court found that, when he
accepted the offer, Taylor must have known the price was too good to be true, and
deliberately made sure that Johnson did not discover the mistake until after the agreement
was completed.
• In the light of these additional facts, the court decided that it would be against good
conscience (ie contrary to equity) to allow Taylor to enforce the contract. It was the first
time this equitable principle had been applied to this type of case.
• This decision now stands as a precedent for future cases that have similar material facts.
The ratio decidendi of Taylor’s case can be stated as:
o In equity, it is contrary to good conscience to enforce a contract if:
o one of the parties is seriously mistaken, and
o the second party was aware of circumstances that indicate the first party is
mistaken, and
o the second party deliberately acts to ensure the error is not discovered until it is
too late.
Ascertaining When a Ratio Decidendi is Binding
• When courts are ranked in seniority, with a right of appeal from lower level courts to
superior courts, they are said to have a hierarchical relationship.
• Lower courts are bound to follow the previous decisions of superior courts in the same
hierarchy.
• The decisions of courts outside of a hierarchy are not binding, but may be persuasive.
Court Hierarchy in Australia
Document Summary
The case is decided according to the law and an appropriate order is made. A judge"s power to make law: the normal expectation is that judges apply the existing law to cases. Judges have no direct authority (for instance, from a constitution) to make" law. Nevertheless reference is commonly made to judge-made" law and the reports of decided cases are routinely cited as a source of law: we find that judges make law indirectly when they decide cases. In most cases, when deciding cases, judges simply find an established rule of law and apply it. But sometimes, the judge may not be able to find an established rule of law to apply. They may: declare a rule as a rule of australian law the first time, eg, a previously unwritten rule of law, or one deriving from natural law or custom.
